Texas pat-down ban may spark new fight with feds

AUSTIN - Gov. Rick Perry's decision to revive a Texas bill criminalizing "intrusive" pat downs by airport security personnel may score him and his presidential aspirations points with conservative activists, but it also is likely to re-ignite a fight with federal officials who have threatened to ground flights over the issue.

It's the kind of Washington-trampling-states'-rights battle on which Perry has built a career. The nation's longest-serving governor has said Americans should be more aware of, and defend themselves against, the expanding role of government in their lives.

Texas' pat downs measure died during the state's regular legislative session after federal authorities indicated passage would result in canceled flights. Perry, who previously said he didn't think the bill had enough support, on Monday bowed to pressure and ordered it placed on the Legislature's agenda for a special session running through June 29.

Transportation Security Administration spokesman Greg Soule said Tuesday that advanced imaging technology and pat downs are the most effective way to detect threats such as explosives "made completely of plastics, liquids and gels, which are designed to circumvent metal detectors."

"Should a bill pass that limits the ability of TSA and its employees to perform its responsibilities and jeopardizes the safety of the public, we will take whatever legal action is appropriate to ensure travelers are safe when they fly from Texas or any other state," Soule said.

The measure passed by the Texas House during the regular legislative session would have made it a criminal offense for officials conducting traveler pat downs to touch "the anus, sexual organ, buttocks, or breast of another person," including through clothing.

John E. Murphy, the U.S. attorney for the Western District of Texas, then wrote a letter to both legislative chambers saying the bill would interfere with TSA's ability to ensure travelers' safety.

Murphy wrote that if the measure became law, the federal government probably would seek to block it with an emergency stay and "unless or until such a stay were granted, TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew."

The bill then stalled in the Texas Senate, prompting a series of small but particularly boisterous protests in the halls of the Capitol.

With debate on the issue resuming, Daryl Fields, a spokesman for Murphy's office in San Antonio, said he doubted another letter would be forthcoming.

"The previous letter, obviously, speaks for itself," Fields said.

Robert Mann Jr., president of R.W. Mann & Company, Inc., an airline industry consulting firm in Port Washington, New York, called the federal government's would-be grounding of flights, "a threat that's not viable. But it's also just grandstanding from the Texas governor."

"The bottom line is, the TSA will do what it has to do," Mann said. "But the idea that they'd shutdown an entire state, it's a non-starter."

Perry gave no reason for changing his mind about adding the bill to the special session, but doing so will help in avoid right-wing criticism as he moves closer to deciding whether to seek the Republican nomination for president.

The governor had said during a weekend book signing at the Republican Leadership Conference in New Orleans that he didn't plan to add the pat-down measure to the agenda because there wasn't enough support or time for it to pass.

Activist Wesley Strackbein, who campaigns against the security procedures, had confronted Perry about the measure. "They don't have the votes on either side," Perry said in a video of the interaction posted on YouTube.

But the next day, state Rep. David Simpson, R-Longview, sent a letter urging Perry to defend the "privacy, dignity and constitutional rights of our citizens." Simpson wrote that he and Sen. Dan Patrick, a Houston Republican, have rallied enough support in both chambers to pass the bill.

The issue has become a driving force for the libertarian wing of the Texas Republican Party. Few Texas airports are equipped with full-body scanners, meaning there often is no other screening option for travelers picked out for what TSA calls an enhanced pat down.

Lt. Gov. David Dewhurst issued a statement cheering Perry's decision to add the bill to the special session agenda, and noting he has been working with Texas Attorney General Greg Abbott's office to ensure a new version of the measure is constitutional.

In a letter to Dewhurst, Abbott's office proposed changes to the failed, original version of bill, including making it clear federal agents could only face prosecution if they violate the Constitution and that the measure extends no farther than the Constitution allows.

Abbott also recommended that the law allow federal agents to avoid prosecution "if a reasonable person would believe" their conduct when carrying out airport searches was lawful.